In the case of Royal & Sun Alliance Insurance PLC v. UPS Supply Chain Solutions, Inc., 2011 WL 3874878 (S.D.N.Y. August 31, 2011), the Plaintiff, a Liability Insurance Company, and one of the defendants filed more than 9 motions in limine between them. (Previously filed motions in limine were not counted by the District Judge in this decision.)
Six of the motions in limine focused on Expert Witnesses and computer simulations. One of the defendant's proffered Experts, an accident reconstructionist, produced various computer simulations "using the PC Crash computer software" to reconstruct the automobile accident at issue and whether in effect it was, in this instance, negligence per se on the part of the subject defendant, as Royal Sun alleged. Royal Sun contended in one of its motions in limine that the accident reconstructionist's testimony would be "unreliable" and should thus be excluded because of 'GIGO,' or 'Garbage In, Garbage Out': Royal Sun alleged that the Expert "used flawed factual inputs to run the program." Id. at *7.
The defendant which proffered this Expert's Opinion Testimony including regarding the computer simulation in question, also submitted a "declaration" from him in opposition to Royal Sun's motion in limine to exclude the Expert's testimony about any of his computer simulations. Id. at *8.
The Federal Court considered the record and found that the Expert's methodology was reliable enough for his Expert Testimony to be admissible. "Royal Sun will have the opportunity to question [him] about his methodology at trial, including why he selected certain inputs for PC Crash and why he decided not to run more than ten scenarios in conducting his analysis." Id. at *9.
Royal Sun's motions in limine fared better with the Federal Judge in this case when they directed attention to two of the accident reconstructionist's computer simulations, with the contention that both of the two simulations were disclosed "late" in violation of Federal Rule of Civil Procedure 26(a)(2)(B) and thus they, and testimony about them, should be excluded under Federal Rule 37(c)(1).
One of the subject computer simulations is called the "Avoidance Simulation," and the other is called the "Fogarty Simulation". The Court found that the defendant disclosed the Expert's Avoidance Simulation six business days after the applicable deadline. The Fogarty Simulation, in contrast, was not "formally disclosed" even at the time the Court wrote the subject opinion. However, the Federal Court was willing to "grant [the defendant] one final opportunity to fulfill its Rule 26 obligations." Id. at *11. If that defendant intends to use the subject Expert's testimony about the two of his computer simulations in question, then that defendant must make the Expert available for deposition about them:
We will not limit [the Expert's] testimony concerning the initial eight to ten PC Crash scenarios he conducted. With respect to the Avoidance and Fogarty Simulations only, [his] testimony will be precluded unless [the defendant proffering his Expert Testimony in this particular case] provides the additional discovery outlined above.
Id.
In this case, once the Federal Court was convinced of the proffering party's failure to comply with the disclosure requirements of Federal Rule 26, the proffering party had a decision to make. It could belatedly comply with those requirements or it could do without the Expert's Testimony at trial in that case. The Federal Court in this case, like the Courts in many other cases previously decided on the same or similar issues, could instead have offered no choice at all and excluded the Expert Witness's Testimony entirely in regard to the untimely disclosed two computer simulations at issue there.
It appears, moreover, that as the proffering party's alleged failure to disclose could not be cured by cross-examination (unless the Expert is made available for deposition), the Court did not treat the alleged failures of his methodology, which could clearly be cured by cross-examination, in anything like the same way.
Admissibility of Expert Testimony in Insurance Coverage and Insurance Bad Faith Cases is the focus of § 8:17 (Third-Party Cases) and § 12:18 of Dennis J. Wall, "Litigation and Prevention of Insurer Bad Faith" (West Publishing Co. Third Edition 2011).
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